Amicus Briefs are submitted by non-parties to a case as a way of introducing information and concerns to the Court, demonstrating that a case’s outcome may have wider effects beyond the immediate parties to the suit. They can provide valuable assistance to the Court in its deliberations by presenting an argument or citing authorities not found in the Briefs of the parties, or by providing important technical or background information which the parties have not supplied. These materials can occasionally play a critical role in the Court’s rationale for a decision.
When filing an Amicus Brief, Supreme Court Rule 37 should be your main guide. The following are answers to commonly asked questions regarding the filing of an Amicus Brief in the United States Supreme Court.
Why File an Amicus Brief?
Amicus Briefs are filed in the United States Supreme Court for a variety of reasons. Some Amicus Briefs provide valuable information about legal arguments, or how a case might affect people other than the parties to the case. Some organizations file Amicus Briefs in an attempt to lobby the Supreme Court, obtain media attention, or impress their members. There are studies that have shown a positive correlation between the number of Amicus Briefs filed in support of granting certiorari, and the Court’s decision to grant certiorari.
What Is Required in an Amicus Brief?
A member of the Supreme Court Bar must be listed on the cover as Counsel of Record. The cover must also identify which party the Brief is supporting, or if the Brief supports only affirmance or reversal. The required sections of an Amicus Brief are: Table of Contents, Table of Authorities, Interest of Amicus Curiae, Summary of Argument, Argument, and Conclusion. The maximum word count for an Amicus Brief at the Petition stage is 6,000 words. The maximum word count for an Amicus Brief at the Merits stage is 9,000 words.
What Is Required in Footnote 1 of the Amicus Brief?
Rule 37.6 states that non-governmental amici “shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made such a monetary contribution to the preparation or submission of the brief. The disclosure shall be made in the first footnote on the first page of text.”
What Is Required for Consent When Filing an Amicus Brief?
Unless the Amicus Brief is being filed by the federal government (or one of its officers or agents) or a U.S. state, permission of the court (by means of Motion for Leave) or mutual consent of the parties is required. If the parties have granted permission to file the Brief, that fact must be recited at the outset of the Brief and the letters of consent must be filed with the Clerk. If the parties have withheld consent, that should also be recited. The amicus must then precede its Brief with a Motion for Leave to File. Additionally, at the Petition stage, the amicus shall ensure that the Counsel of Record for all parties receives notice of its intention to file an Amicus Brief at least 10 days prior to the date of filing. The Amicus Brief shall indicate that Counsel of Record received timely notice of the intent to file the Brief and shall specify whether consent was granted.
Amicus Curiae, or “Friend of the Court,” Briefs are filed in many Supreme Court matters, both at the Petition for Writ of Certiorari stage, and when the Court is deciding a case on its merits. In order to help garner amicus support by giving possible amici direct access to the Brief, many Petitioners will have Cockle Legal Briefs add their Petitions to our blog. If you are planning on filing an Amicus Brief or any Brief in the United States Supreme Court, call and talk to one of our Legal Document Analysts about the intricacies of the filing.